Male v. Splitsville Entertainment Centre, 2013 HRTO 1471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bradley Male

Applicant

-and-

Splitsville Entertainment Centre

Respondent

DECISION

Adjudicator: David Muir

Date: August 29, 2013

Citation: 2013 HRTO 1471

Indexed as: Male v. Splitsville Entertainment Centre

APPEARANCES

Bradley Male, Applicant

Debra Male and Leslie Currell, Representatives

Splittsville Entertainment Centre, Respondent

Keith Mitchell, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2In his Application the applicant alleges that he fainted at work on September 10 2011, after being verbally reprimanded by a supervisor in front of others. The applicant was not offered medical attention and continued with the planned activities for the day which was largely taken up with training. The respondent did not report the incident to the appropriate authorities at the Ministry of Labour nor was a report filed with the Workplace Safety and Insurance Board (WSIB).

3The applicant returned to work on September 12 after a scheduled day off. He was told by his employer that he must go see a doctor before resuming his full duties. Despite this instruction it appears that the applicant did perform some of his regular duties that day. The applicant returned the following day, September 13, and was asked about the note. He had not yet seen his doctor but told his employer that he had an appointment on the coming Friday, September 16. The applicant was fired later that day. The applicant believes that if he had not fainted at work he would still be employed by the respondent. There is no allegation that the applicant is or was a person with a disability. The applicant believes that he was perceived by the respondents to be a person with a disability because of the fainting episode.

4The Application is dismissed. Much of the applicant’s evidence and argument was directed to the point that the applicant was not treated fairly – that he was not adequately trained or that he was not given adequate support and accordingly was unable to meet the respondent’s performance expectations. As I pointed out to the parties at the hearing, the question for the Tribunal is not whether he was treated fairly or whether the termination of his employment was justified, but whether a factor in the respondent’s decision was that he was perceived to be a person with a disability. Although there are reasons for the applicant to have been suspicious there is really no evidence that this was the case.

5I heard the evidence of the applicant; Tegan Taylor, an employee; and John Dowell, a former employee. For the respondent I heard from Pat Haggerty and Tom Grunninger, owners of the business, and Martin Dorie, General Manager at the time. Oral submissions were made by telephone conference call on August 23, 2013.

6The respondent operates a bowling alley in Hamilton. The applicant had been employed with the respondent and prior employers operating this business for 30 years. The applicant was a mechanic responsible for maintaining the machinery necessary for a bowling alley. The current respondent took over the business in 2009. The applicant was kept on.

7The applicant has no direct evidence of discrimination. Rather he asks that I draw an inference primarily from the fact that three days after he fainted at work he was fired. The applicant also relies on the fact that in his view the respondent did not offer him medical assistance or report the incident to the relevant authorities at the Ministry of Labour and the WSIB. The applicant argued that his firing was a cover-up for these failures. The applicant also argues that, given that pursuant to their workplace policy they could have already terminated him for allegedly not performing his duties adequately, they had created a circumstance wherein they could have terminated him at any time and did so when they did to avoid potential WSIB liability and/or to cover up for their failure to report the incident as required.

8The difficulty with the applicant’s primary position is that there is no evidence to support his contention that he was perceived to be a person with a disability. The respondent’s witnesses all stated variously that they thought the fainting spell was intended to deflect attention from the trenchant criticism of his work in front of several colleagues or more charitably, it was a stress reaction to the criticism of him which was loud and public. In the end this was also the apparent conclusion of his physician who could find nothing wrong with him and attributed the incident to workplace stress.

9The applicant relies on the fact that he was asked for a doctor’s note before he could work on the machines. He argues that this request indicates that the respondent must have been concerned that he was a person with a disability and a potential liability. Despite the agreement of all that this request was made of the applicant it is also clear that the respondent did little to enforce the requirement. I accept the respondent’s evidence that the request for a note was made because Mr. Dorie wanted to ensure that the applicant could safely work if for no other reason than the respondent’s potential liability in the event that there was some medical issue that could lead to a recurrence. I also accept Mr. Dorie’s evidence in response to my questions that although he knew that the applicant was likely to be terminated when he asked for the note on September 12, he did not make the final decisions on firings and if the applicant were to remain at work such a note would need to be provided.

10It is also clear from the conduct of all of the actors in this piece including the applicant, and confirmed in their own evidence, that no one thought that the fainting spell was an indication of any underlying medical condition or disability. The applicant was clear in his evidence that while a bit shaky on the day of the incident he was able to perform the minimal duties required of him that day. When he returned to work on September 12 he felt fine and told any of the respondent’s staff who asked that he was fine. The evidence of all of those involved indicates that the need for a note had become something of a formality.

11As regards the applicant’s contention that he was dismissed in an attempt to cover up their failure to report the incident to the relevant authorities, assuming this to be the case as it may well be, it is not clear to me how this would tend to support the Code claim and I find that it does not. It is not a violation of the Code to attempt to cover up a workplace accident or fail to report a minor incident to the relevant authorities.

12I am also not persuaded by the applicant’s argument that the respondent could have terminated the applicant at any time pursuant to their workplace policies as he had both a written and verbal warning, and chose to do so when they did because they were concerned he might be a person with a disability. As I understand the argument, it is essentially that the fainting episode gave rise to the possibility that on top of everything else the applicant might become a further liability because of illness and this fact became the straw that broke the camel’s back. Considering the evidence as a whole, including the actions of all of the parties involved as discussed above, and the performance issues discussed below, I am not prepared to draw the inference from the proximity in the timing of the fainting incident and his dismissal that the fainting incident itself was a factor in the dismissal. In my view it much more likely that what provoked the decision to terminate was the culminating incident of the respondent being told by an independent third party that its machines were not being properly maintained.

13The respondent’s evidence establishes that the applicant appeared to be unable to perform his duties adequately. The applicant was responsible for maintaining the machinery of the alley. A key component of this equipment are the pin setters. It was agreed that the machinery in this alley was in a state of poor repair when the respondent took it over. Although not central to the issues before me, it appears that the equipment had been allowed to run down and preventive maintenance had not been a priority. Mr. Male, according to one of the respondent’s witnesses, was quite capable of fixing the machines when they broke down, but the respondent wanted to move to a preventive maintenance regime that would reduce the down time of the alleys. So rather than wait until there was a problem to be fixed, the respondent wanted to prevent the machines from breaking down as much as possible.

14The applicant was given three warnings about his performance and multiple coaching sessions according to the respondent’s witnesses, in particular Mr. Dorie, who was in day to day conduct with the applicant as General Manager. The applicant does not deny that there were issues with the maintenance of the machinery but claimed that it was because he was denied the resources in terms of time to do the work, parts and assistance. The respondent countered that he was given everything that he needed but for whatever reason he was not able to meet its standards. The respondent’s evidence also was that since the applicant’s departure, his replacement, working under similar conditions, has significantly improved the performance of the equipment. I accept this evidence as it was essentially unchallenged by the applicant.

15I acknowledge the applicant’s evidence that he was able to keep the machines running prior to the respondent taking over the operation and appears to be able to perform his duties adequately in his new position. The evidence however was very general and vague. So for example while he may be performing adequately in his new role, I don’t really have any evidence of the nature of that role. I also understand that he is working under different conditions with more assistance than he had with the respondent. Again it may be that the respondent’s expectations were unrealistic, but they were what they were and the applicant could not meet them.

16There is no dispute that the respondent’s concern had been ongoing for some considerable period of time. In order to get an outsider’s view of the problem the respondent decided to retain a technician trained by the manufacturer of the equipment to come in and audit the maintenance work being done on the machines and provide some training. The audit was undertaken on September 10 and it was the results of the audit that provoked the loud and public chastising of the applicant for his poor performance that may have resulted in his fainting spell. As such, whether it was entirely fair or not, there appears to have been a substantial basis for the respondent’s concern that despite the passage of two years and the resources they had put into this work, the applicant appeared unable to improve his ability to properly maintain the machines. I find that it was the fact of the audit on September 10 which confirmed the respondent’s belief that the applicant was not and could not perform his duties to its satisfaction and which caused the internal discussion leading to the applicant’s dismissal on September 13, and not any concern that the fainting spell might be a result of a medical condition requiring accommodation.

17I appreciate that the applicant feels that his treatment was unfair and that he was not given sufficient time to remedy the situation; however, whether or not that was the case is not an issue for the Tribunal. In all of the circumstances I find that this Application must be dismissed, there being no evidence to support the contention that a factor in the decision to dismiss him from his employment was a perceived disability.